Definition and clarification of terms: Preemptive strike
The term preemptive strike refers to an action taken in advance to fend off a concretely imminent danger before an attack has actually occurred. In legal contexts, a preemptive strike especially refers to an act intended to prevent a potential unlawful aggression against one’s own legal interest or that of a third party. Preemptive strikes are of particular practical and theoretical relevance in criminal law and international law.
Preemptive strike in criminal law
Criminal law assessment
In German criminal law, the term preemptive strike is mainly used in connection with self-defense (§ 32 German Criminal Code). Self-defense is the right to avert an imminent, unlawful attack on oneself or another. Self-defense actions can only be deemed lawful if the attack is imminent or already underway. The question arises to what extent a preemptive strike—that is, an anticipatory defense action—is covered by the right of self-defense.
Imminence of the attack
The decisive factor is the criterion of imminence within the meaning of § 32 German Criminal Code. An attack is considered imminent if it is about to happen, has already begun, or is still ongoing. A preemptive strike may therefore be justified if, based on the circumstances, an attack is expected in the immediate future. The boundary between an attack that is not yet imminent (prohibition of the preemptive strike) and an already imminent attack (permission) is often difficult to determine. Case law assesses whether, from an objective standpoint, there is a clear, tangible threat to life, limb, or another legal interest.
Immediacy and necessity
The preemptive strike must be necessary, meaning it is the least severe means of averting danger. A strike that is not necessary, taken too early, or disproportionate, is generally not covered by the right of self-defense. The standard of necessity depends on the nature and extent of the impending danger, the availability of alternative defense measures, and the intensity of the anticipated injury.
Exceeding self-defense and limits
Exceeding self-defense, especially in cases of a significantly premature preemptive strike, may result in criminal liability for assault or other offenses. Those who exceed the limits of self-defense may, under certain circumstances, invoke § 33 German Criminal Code (excess in self-defense) if they act out of confusion, fear, or terror. In cases of deliberately premature preemptive strikes, excess in self-defense generally does not apply.
Relevance in administrative offenses and civil law
Outside criminal law, the principle of the preemptive strike must also be examined, for example in the context of neighbor law disputes (§ 906 German Civil Code) or police law (danger prevention). In these areas, a specific danger or a certain degree of probability for a damaging event is generally required for preventive measures to be permissible.
Preemptive strike in international law
Principle of the prohibition of force and exceptions
In international law, the preemptive strike is a central topic in connection with the prohibition of force under the UN Charter (Art. 2 para. 4 UN Charter). States are generally prohibited from using force on the territory of another state. Exceptions include the right of self-defense under Art. 51 UN Charter and measures by the UN Security Council.
A preemptive strike would be permissible under international law if an immediate, imminent armed attack against the state is foreseeable. The threshold of imminence is highly controversial and interpreted differently by states. While the classic doctrine only considers a ‘pre-emptive strike’ to repel an actually imminent attack as permissible, a ‘preventive strike’—that is, a preventive war against mere potential threats—is generally regarded as a violation of international law.
Distinction: Preemptive strike vs. preventive strike
- preemptive strike: Defense against a not yet concretely foreseeable, vaguely suspected attack (usually contrary to international law).
- Preventive strike: Defense against an imminent, highly probable attack (under narrow circumstances permissible under international law).
State practice and international courts
Court decisions, UN statements, and state practice show that the preemptive strike is handled with considerable restraint under international law. The subsequent justification of a preemptive strike must demonstrate the imminence, the lack of alternatives, and the proportionality of the action.
Preemptive strike in related legal areas
Police law and danger prevention
In police law, a preemptive strike serves to avert original dangers before damage occurs. Police hazard prevention is designed to be preventive, with measures allowed if there is a specific danger to public safety and order. The intensity of intervention and the justification for preventive actions are guided by the principle of proportionality.
Labor law and vigilantism
In labor law, a preemptive strike may involve early reactions to imminent breaches of duty by employees. Particular attention must be paid to upholding contractual duties of loyalty and the prohibition of vigilantism. Measures may only be taken if there are sufficient indications of a specific danger.
Family law and preventive measures
In family law, a preemptive strike may occur through an application for interim orders if there are acute dangers to the welfare of a child. Here too, preventive measures are only permissible in the presence of imminent danger.
Legal assessment and controversy
The preemptive strike remains legally controversial both domestically and internationally. The principle of proportionality, the necessity of the measure, and the distinction from actual self-defense or permissible danger prevention are subjects of ongoing legal scrutiny and societal debate.
Conclusion
The preemptive strike is a highly complex legal matter that reflects the tension between effective danger prevention and the prohibition of the misuse of anticipatory force. In criminal law, international law, and other areas of law, it must always be carefully considered whether and under what conditions preventive measures are permissible and justified. The criteria of imminence, necessity, and proportionality are of central importance. Anyone who disregards these principles risks acting unlawfully and facing criminal or civil sanctions.
Frequently asked questions
Is a preemptive strike permissible under German criminal law?
A preemptive strike, that is, the use of force to forestall a merely anticipated future attack, is generally not permitted under German criminal law. Self-defense (§ 32 German Criminal Code) justifies only defensive actions against an imminent, unlawful attack. According to established case law and the prevailing view in the literature, it is not sufficient for an attack to be merely feared or to possibly occur in the future. The attack must actually be imminent. Therefore, an action based solely on vague fears or the mere possibility of an attack does not constitute self-defense and may constitute an independent, punishable act of bodily harm or another offense.
From a legal perspective, when does an attack qualify as imminent?
An imminent attack under § 32 German Criminal Code is present when the act of aggression is about to begin, has already begun, or is ongoing. An attack is also considered ‘imminent’ if, given the objective circumstances, immediate action is necessary, as otherwise, waiting would thwart or significantly impede legal protection. However, this does not mean that every threat, provocation, or aggressive stance already constitutes an imminent attack. Defense may only be directed against a concrete, immediately threatening violation of a legal interest; purely preventive measures against a potential future attack are not sufficient.
How do preemptive strikes differ from self-defense actions?
Preemptive strikes and self-defense actions differ significantly in the timing of defense and the requirements for the situation. While self-defense actions may be taken in response to an imminent, unlawful attack, preemptive strikes occur before a concrete dangerous situation has arisen. Self-defense may only be exercised when the attack has actually begun or is imminent and waiting would significantly worsen the defender’s situation. Acting prematurely, for example, based on fears or uncertain indications, exceeds the boundaries of self-defense and is not covered by law.
Are there exceptions in which a preemptive strike could be justified?
Exceptions are only conceivable under very narrow conditions and are handled extremely restrictively in practice. In special exceptional cases, if the danger to the victim is so immediate and unavoidable that any delay in defense would make repelling the attack impossible, early intervention could theoretically be permissible as self-defense. However, this requires that the objective situation necessitates an immediate response and that no other means of defense is available. In general, however, preemptive strikes are regarded as premature and unjustified uses of force.
How does case law assess conditional attacks in the context of preemptive strikes?
Case law recognizes that so-called conditional attacks may exist, for example in cases of threats of retaliation—as in: ‘If you come closer, I’ll strike.’ Here, an imminent attack may already be present if the aggressor makes their willingness to launch an immediate attack unmistakably clear and the situation leaves no room for other de-escalation options. In such cases, a defensive action may possibly be justified. However, the Federal Court of Justice sets a high threshold for an imminent attack and always requires a detailed case-by-case assessment; mere fears are still insufficient for the assertion of a right to self-defense.
What criminal consequences may arise from an unjustified preemptive strike?
If an unjustified preemptive strike is carried out when there is neither an imminent attack nor any other justification, criminal consequences may ensue. The person typically becomes liable for intentional bodily harm (§ 223 German Criminal Code), possibly for dangerous bodily harm (§ 224 German Criminal Code) or other offenses. Recourse to justifications such as self-defense or necessity is ruled out, so it is generally a criminal offense and subject to punishment.
Can mistakes about the imminence of the attack be excused?
If the perpetrator mistakenly believes that an imminent attack is already underway, § 17 German Criminal Code (mistake of law) or § 16 German Criminal Code (mistake of facts) must be examined. If there is a so-called mistake about the legal elements justifying the act, this may, under certain circumstances, lead to exemption from punishment if the mistake was not avoidable by the actor. However, it is required that the mistake was unavoidable; in the case of negligence in misjudging the situation, criminal liability remains. The requirements for an unavoidable mistake are high and are strictly scrutinized by the courts.
